Wight Fire Proofing Co. v. Poczekai

Citations

• 130 Ill. 139
• 22 N.E. 543

Syllabus

<p>1. Evidence—opinions of witnesses. As to matters which do not so far partake of the nature of a science as to require a course of previous habit or study in order to an attainment of a knowledge of them, the opinions of witnesses, though experts, are not admissible as evidence.</p> <p>2. Same—on the question of negligence. Where the negligence of the defendant, relied on as a ground of action, is in the manner in which the servants of the defendant proceeded in getting ready for the performance of certain work, evidence to show a want of negligence in a different matter will be properly excluded.</p> <p>3. Practice — directing what the verdict shall be. Where there is evidence tending to prove the facts necessary to a recovery by the plaintiff, it is not error for the trial court, at the conclusion of the plaintiff’s case, to refuse to instruct the jury to find for the defendant.</p> <p>i. In an action to recover damages for an injury caused by alleged negligence on the part of the defendant, the court modified an instruction asked by the defendant, by the insertion of the word “sufficient,” so that it concluded: “If the fact of negligence be doubtful, the defendant is entitled to the verdict. The fact of an accident having occurred is not of itself [sufficient] evidence of negligence : ” Held, that there was no error in the modification. In such case, the fact that a girder on the roof of a house did fall, the falling of which caused the injury, afforded some evidence of negligence under the circumstances proved, and the court properly refused to exclude that fact wholly from the consideration of the jury on the question of negligence.</p> <p>5. Same—time to object—for a variance. A party must take advantage of a variance between the pleadings and the evidence in the trial court, so that it may be obviated by amendment. The failure to there object will be regarded as a waiver of the objection.</p>